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Failed and Falling States Provided by the author(s) and NUI Galway in accordance with publisher policies. Please cite the published version when available. Title Failed and Failing States: Causes and Conditions Author(s) Silva, Mario Publication Date 2012-06-11 Item record http://hdl.handle.net/10379/3050 Downloaded 2021-09-28T07:34:10Z Some rights reserved. For more information, please see the item record link above. Failed and Failing States: Causes and Conditions By Mario Silva Thesis submitted in fulfillment of the requirements for the degree of Doctor of Philosophy (Ph.D.) Under the supervision of Professor William A. Schabas Faculty of Law Irish Centre for Human Rights National University of Ireland Galway June 2012 1 Failed and Failing States: Causes and Conditions Abstract........................................................................................................... 5 Introduction..................................................................................................... 6 Part I: The Origins of State Formation .......................................................... 18 Chapter 1: The State in International Law - Historical Background ............... 19 1.1 Criteria and Conditions for Statehood ...................................................... 24 1.2 Emergence of the Modern State System ................................................... 32 1.2.1 The Principle of State Sovereignty ........................................................ 35 1.2.2 Principle of Self-determination ............................................................. 39 1.2.3 State Formation .................................................................................... 53 Chapter 2: Failure of State Formation - International Dimensions ................. 64 2.1 Defining State Failure .............................................................................. 65 2.2 Causes and Structural Indicators .............................................................. 88 2.2.1 Absence of Rule of Law ....................................................................... 95 2.2.2 Political Instability – Lack of Legitimacy ........................................... 103 2.2.3 Economic and Social Instability .......................................................... 113 2.2.4 Lack of Internal Security .................................................................... 119 2.2.5 Authoritarian Rule and Clan Loyalty .................................................. 128 2.2.6 Impunity and Ineffective Justice Systems ........................................... 134 2.2.7 Lack Territorial Control – de jure and de facto Sovereignty Gap ........ 142 2.2.8 Gross and Systematic Violations of Human Rights ............................. 144 2.2.9 Loss of Social Cohesion and Lack of Development ............................ 150 2.2.10 Corruption and Weak Institutions ..................................................... 152 2 2.3 Legacy of Colonialism........................................................................... 156 2.4 Terrorism .............................................................................................. 160 2.5 Limitations in Measuring State Failure .................................................. 165 Part II: International Human Rights Law and Security ................................ 169 Chapter 3: International Human Rights Law ................................................ 170 3.1 Human Rights Instruments .................................................................... 171 3.1.2 Regional Treaties ................................................................................ 176 3.1.3 Humanitarian Law .............................................................................. 177 3.2 Human Security – The concept .............................................................. 180 Chapter 4: State Responsibility - General Principles of Peremptory Norms . 183 4.1.1 Obligations to Prosecute – Principle of aut dedere aut judicare ........... 184 4.1.2 Principle of Universal Jurisdiction ...................................................... 187 4.2 Humanitarian Intervention ..................................................................... 188 4.2.1 Responsibility to Protect Doctrine ...................................................... 193 4.2.2 Emergence of new jus cogens norms .................................................. 202 4.3 Practice of the Security Council – opinio juris ....................................... 217 Part III: Reconstruction and the International Community .......................... 223 Chapter 5: Prevention – Strengthening States Against Failure ..................... 224 5.1 State-Building and Reconstruction ......................................................... 228 5.2 Building Rule of Law ............................................................................ 234 5.3 Establishing Accountability – Ending impunity ..................................... 241 5.4 Establishing Security ............................................................................. 246 5.5 Disarmament and Demobilization .......................................................... 250 5.6 Economic and Social Reconstruction ..................................................... 254 3 5.7 Role of Civil Society – Women and Minorities ...................................... 258 5.8 Reconstituting Political Structure and Legitimacy.................................. 263 5.9 Reconciliation – Transitional Justice ..................................................... 267 5.10 Lessons Learned .................................................................................. 272 Chapter 6: Challenges for the International Community .............................. 279 6.1 Role of United Nations .......................................................................... 279 6.1.1 Humanitarian Assistance .................................................................... 283 6.1.2 Peacekeeping - Conflict Prevention .................................................... 285 6.2 Institutional Reform, Trusteeship – Limited Sovereignty ....................... 293 General Conclusion ..................................................................................... 303 Bibliography ............................................................................................... 308 I. Books and Academic Articles ............................................................ 308 II. Media Sources ................................................................................... 327 III. United Nations News Service ............................................................. 330 IV. United Nations Resolutions ................................................................ 334 V. United Nations Documents................................................................. 336 VI. International Instruments .................................................................... 339 VII. Regional Instruments ......................................................................... 341 VIII. National Legislation, Official Documents and Remarks ..................... 342 IX. Non-Governmental Organizations Publications .................................. 344 X. International Court of Justice and other Tribunals .............................. 347 4 Abstract Through scholarly consideration this study evaluates structural competency gaps that precipitate state failure and examines the resulting consequences for the world community. As an elected official for over seventeen years, including service as a Member of Parliament, I have travelled to many of the regions reviewed in this study. I have heard firsthand accounts from witnesses of the consequences of state failure in countries including Afghanistan, Sudan, Democratic Republic of the Congo and Haiti. Failing states have overlapping characteristics of structural competency failure, including the inability to provide healthcare, education, food, legitimate policing and economic sustainability. There are economic inequalities present as well as a loss of legitimacy, corruption and reduced social cohesion. Failure of rule of law is manifested in areas of judicial adjudication, security, reduced territorial control and systemic political instability. The international community often confronts these challenges in a manner that actually complicates issues further through lack of consensus among actors. Consequently, a new and emerging concept of sovereignty needs to be reviewed in terms of the post-modern state. The new and emerging human security compact, evolving globalization and the decline of the state redefine it within the new global order. In some instances the best interests of these failing and failed states would be best served by shared sovereignty with the international community; that is, trusteeship. International actors attempting to ‘fix’ failed states must focus their attention on the issues affecting structural competency that have actually caused the state to fail in the first place. By addressing the structural competency of failed states with an understanding of the causes, it is possible to create the practical framework for a global model of statehood that prevents state failure. Effective policies of integrated state-building and resources targeted at bridging structural competency gaps require a better understanding of both the challenges and the solutions. 5 Introduction There has been a renewed focus on failed and failing states in view of the increasingly significant
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